the Magistrate Judge before they stormed out of the conference.
This Court held a hearing on April 25, 1997, after notice to all parties, on why Mr. and Ms. Peker should not be held in contempt in accordance with Magistrate Judge Peck's April 14, 1997 Certification. Mr. and Ms. Peker were afforded the opportunity to introduce any evidence at the hearing or in writing. They chose to make two written submissions to the Court in which they argued that they were not in contempt and had not screamed at the Magistrate Judge.
"Federal courts have the power summarily to punish as contempt 'misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice.'" United States v. Martin-Trigona, 759 F.2d 1017, 1024 (2d Cir. 1985) (quoting Ex Parte Terry, 128 U.S. 289, 304, 32 L. Ed. 405, 9 S. Ct. 77 (1888)). Pursuant to 18 U.S.C. § 401, a court has the "power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as-- (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice ...." 18 U.S.C. § 401(1); see also Martin-Trigona, 759 F.2d at 1024 ("[The power to punish as contempt] is limited to circumstances 'where the misbehavior is in the presence of the judge and is known to him, and where immediate corrective steps are needed to restore order and maintain the dignity and authority of the court.'") (quoting Johnson v. Mississippi, 403 U.S. 212, 214, 29 L. Ed. 2d 423, 91 S. Ct. 1778 (1971)). "Although the contempt power should not be used in a manner that impinges on legitimate advocacy, a judge need not tolerate disrespect or a deliberate show of defiance in open court. To affront the dignity of the court the misbehavior need not insult the judge personally, but may consist of threats, disrespect or other like behavior." United States v. Giovanelli, 897 F.2d 1227, 1232 (2d Cir.), cert. denied sub nom. Hochheiser v. United States, 498 U.S. 822, 112 L. Ed. 2d 46, 111 S. Ct. 72 (1990).
Pursuant to 28 U.S.C. § 636(e), a magistrate judge has the power to certify facts to the district court constituting a contempt including "misbehavior at a hearing or other proceeding" or "any other act or conduct which if committed before a judge of the district court would constitute contempt of such court." The district court, following a hearing such as that afforded to Mr. and Ms. Peker in this case, shall, if the evidence so warrants, punish the contemnor in the same manner and to the same extent as for a contempt committed before a district court judge.
In this case, the evidence establishes beyond a reasonable doubt that Mr. and Mrs. Peker not only screamed at the Magistrate Judge, but that they also stormed out of the Final Pre-trial Conference before it had concluded despite being warned that if they did so, the Magistrate Judge would recommend dismissal of the action as a contempt sanction. Mr. and Ms. Peker had also been warned in the past that disruptive conduct could lead to contempt sanctions including the dismissal of this case in which event there would be no trial. Both the transcript and the audio tape of the proceeding clearly indicate that Mr. and Ms. Peker's "insulting remarks, scornful tone of voice, and disrespect had become 'a flagrant defiance of the person and presence of the judge before the public.'" Martin-Trigona, 759 F.2d at 1026 (quoting United States v. Marra, 482 F.2d 1196, 1201 (2d Cir. 1973) (quoting Cooke v. United States, 267 U.S. 517, 536, 69 L. Ed. 767, 45 S. Ct. 390 (1925))). Although courts must be particularly solicitous of pro se litigants, there is no excuse for any litigant screaming at a judge, insulting the court, ridiculing any proposed sanction, and storming out of the courtroom during the middle of a conference after being warned of the consequences. Accordingly, Mr. and Ms. Peker are adjudged in contempt of court for their actions at the Final Pretrial Conference on March 26, 1997. See, e.g., Giovanelli, 897 F.2d at 1232; United States v. Ruggiero, 835 F.2d 443, 446 (2d Cir. 1987); Martin-Trigona, 759 F.2d at 1025-26; In re Williams, 500 F.2d 403, 406 (2d Cir. 1974), cert. denied, 419 U.S. 1107, 42 L. Ed. 2d 803, 95 S. Ct. 778 (1975).
Ordinarily, the sanction for contempt is a fine or imprisonment. See, e.g., Giovanelli, 897 F.2d at 1232; Williams, 500 F.2d at 405. However, in this case, a specific fine would likely be meaningless. As explained above, the Magistrate Judge previously sanctioned Mr. Peker pursuant to Fed. R. Civ. P. 37 for failure to appear at conferences and a deposition, but Mr. Peker has refused to pay. Furthermore, imprisonment is inappropriate in light of Mr. and Ms. Peker's age. Dismissal of this action is therefore the most appropriate contempt sanction. As the Magistrate Judge noted, "Certainly, if the Court can dismiss under Rule 37 of the Federal Rules of Civil Procedure for disobedience of discovery and scheduling orders in appropriate cases, the Court should be able to dismiss as a contempt sanction where, as here, no other sanction seems appropriate for the contempt." (Certification of Facts for Contempt Pursuant to 28 U.S.C. § 636(e) at 7.)
Accordingly, this action is dismissed with prejudice.
For the reasons explained above, Mr. and Mrs. Peker are adjudged in contempt, and this action is dismissed with prejudice. The Clerk is directed to enter Judgment dismissing the action and closing the case.
Dated: New York, New York
May 5, 1997
John G. Koeltl
United States District Judge